Citation Nr: 0947404
Decision Date: 12/15/09 Archive Date: 12/24/09
DOCKET NO. 07-03 018 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Whether new and material evidence has been received to
reopen a claim for service connection for an acquired
psychiatric disability to include major depression (and
excluding PTSD).
2. Entitlement to service connection for posttraumatic
stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Tabitha G. Macko, Associate Counsel
INTRODUCTION
The Veteran had active service from December 1984 to February
1990.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from an August 2006 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Waco, Texas, which, in pertinent part, denied service
connection for major depression, claimed as a mental
condition, PTSD.
The Board acknowledges the recent United States Court of
Appeals for Veterans Claims (Court) decision, See Clemons v.
Shinseki, 23 Vet. App. 1 (2009), holding that the scope of a
mental health disability claim includes any mental disability
that may reasonably be encompassed by the claimant's
description of the claim, reported symptoms, and the other
information of record. However, the specific procedural
history of this case prevents the claim from being more
broadly characterized. Indeed, in this case, a final rating
decision in April 1997 denied service connection for major
depression. Thus, new and material evidence is required
before such claim may be considered on the merits.
38 U.S.C.A. § 7105.
The Board is also cognizant that a change in diagnosis or the
specificity of the claim must be carefully considered in
determining the etiology of a potentially service- connected
condition as well as whether the new diagnosis is a
progression of the prior diagnosis, a correction of an error
in diagnosis, or the development of a new and separate
condition. 38 C.F.R. §§ 4.13, 4.125 (2008); Boggs v. Peake,
520 F.3d 1330 (Fed. Cir. 2008). In this case, although the
prior final denial in April 1997 the Veteran's current claim
of service connection for a psychiatric disorder (with the
exception of his recent PTSD claim) is based on the same
factual basis and diagnoses as the previous claim that was
last decided on the merits. Thus, new and material evidence
is necessary to reopen the psychiatric claim not based on
PTSD, and accordingly the PTSD issue may not be expanded even
after consideration of Clemons.
Furthermore, it appears the RO considered the major
depression claim on the merits here. However, the
preliminary question of whether a previously denied claim
should be reopened is a jurisdictional matter that must be
addressed before the Board may consider the underlying claim
on its merits. Barnett v. Brown, 8 Vet. App. 1, 4, (1995),
aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996).
Therefore, regardless of the manner in which the RO
characterized the issue, the initial question before the
Board with respect to the psychiatric claim not based on PTSD
is whether new and material evidence has been received.
FINDINGS OF FACT
1. An unappealed rating decision dated in April 1997, the RO
denied entitlement to service connection for major
depression, claimed as mental condition.
2. The evidence submitted since the time of the RO's April
1997 decision denying service connection for major depression
is new but does not relate to an unestablished fact, and does
not raise a reasonable possibility of substantiating the
Veteran's current claim.
3. The probative evidence of record fails to establish that
the Veteran engaged in combat with the enemy and further
fails to verify any claimed in-service stressors.
CONCLUSIONS OF LAW
1. The April 1997 rating decision denying service connection
for major depression is final. 38 U.S.C.A. §§ 5103(a),
7105(d) (West 2002); 38 C.F.R. § 20.1103 (2009).
2. The evidence received subsequent to the April 1997 rating
decision is new but not material, and the requirements to
reopen the claim of service connection for major depression
have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5108 (West
2002); 38 C.F.R. §§ 3.156, 3.159 (2009).
3. PTSD was not incurred in or aggravated by active service.
38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
New and Material Evidence - Legal Criteria
By way of background, the Veteran first submitted a claim for
a mental disorder in September 1995. The RO initially denied
the claim for major depression in July 1996, finding no
causal relationship between a current disorder and active
service. However, it was noted that the Veteran's service
treatment records were not available for review and, if later
obtained, the case would be reconsidered.
The RO subsequently received the Veteran's service treatment
records and issued an April 1997 rating decision which found
there was no complaint regarding any mental condition in
service. The record contains no response or appeal from the
Veteran; and so the decision became final. See 38 U.S.C.A. §
7105(c).
In July 2005 the Veteran submitted another claim which listed
several disabilities, including mental condition. This claim
has denied by the August 2006 rating decision at issue.
With respect to applications to reopen previously denied
claims, "new" evidence is defined as evidence not
previously submitted to agency decision-makers. "Material"
evidence means existing evidence that, by itself or when
considered with previous evidence of record, relates to an
unestablished fact necessary to substantiate the claim. New
and material evidence can be neither cumulative nor redundant
of the evidence of record at the time of the last prior final
denial of the claim sought to be reopened, and must raise a
reasonable possibility of substantiating the claim. 38
C.F.R. § 3.156(a) (2009).
When determining whether the claim should be reopened, the
credibility of the newly submitted evidence is presumed.
Justus v. Principi, 3 Vet. App. 510 (1992). However, lay
assertions of medical causation cannot serve as the predicate
to reopen a claim under § 5108. See Moray v. Brown, 5 Vet.
App. 211, 214 (1993).
In order for evidence to be sufficient to reopen a previously
disallowed claim, it must be both new and material. If the
evidence is new, but not material, the inquiry ends and the
claim cannot be reopened. See Smith v. West, 12 Vet. App.
312, 314 (1999). If it is determined that new and material
evidence has been submitted, the claim must be reopened. VA
may then proceed to evaluate the merits of the claim on the
basis of all evidence of record, but only after ensuring that
any duty to assist the Veteran in developing the facts
necessary for his claim has been satisfied.
Discussion
The evidence of record before the RO at the time it issued
the last final denial in April 1997 consisted of the
Veteran's service treatment records (which contain no mental
disorders complaint or treatment as well as no separation
Report of Physical Examination), his DD 214 Certificate of
Release of Discharge from Active Duty, September 1995 VA
discharge summary following the Veteran's in-patient VA
treatment for depression with a suicide attempt; and the May
1996 VA mental disorders examination, which concluded with
the diagnosis of major depression, recurrent, severe without
psychotic features.
After the April 1997 rating decision, the Veteran submitted
an August 1998 claim listing other physical conditions, an
April 2005 private report of psychological evaluation, years
of private treatment reports and workman's compensation
reports following workplace injuries to his back in the late
1990's through 2004; duplicate copies from his service
treatment records; VA treatment records dated September 1995
to July 1998; a copy of the December 1989 psychiatric
evaluation prepared for his discharge from service; May
through September 1994 treatment records from a service
hospital for the Veteran as a dependent spouse, containing a
major depression diagnosis; statements regarding his PTSD
claim; and a May 2006 VA mental health assessment and
consultation.
The Board has considered the evidence submitted by the
Veteran; however, the Board finds that the Veteran has not
submitted evidence that is new and material, and therefore
his claim may not be reopened.
The VA treatment records from 1995 to 1998 and 2006 are
current treatment records that confirm the diagnosis of major
depression, as well as other related mental health diagnoses
(dysthymic disorder). The private April 2005 psychological
evaluation did not include a depression diagnosis reached by
the evaluator, though he remarked that the Veteran has
suffered from it in the past. The 1994 service hospital
records do contain a diagnosis of major depression, though
there is no opinion regarding etiology or mention of the
Veteran's active service. The submission of these records
are "new" in the sense that they had not previously been
included in the claim file; however, not one of the reports
can be considered "material." At no time do these non-VA
and VA treatment records indicate that the major depression
or a mental condition experienced by the Veteran was the
result of his service or was aggravated by his service. The
depression diagnoses are alternatively attributed to his then
lack of employment, marital strains, and financial
difficulties. One September 1995 VA treatment entry noted
the Veteran's assertion that he only got depressed "in a
crisis" and that he did not considered himself at that time
depressed. The private April 2005 psychological evaluation
mentioned the Veteran had the concurrent problem of
depression; however no diagnosis of depression was made by
that evaluator. Moreover, none of the recently added reports
date back historically such as to demonstrate continuity of
symptomatology since the Veteran's discharge from active
service.
The United States Court of Appeals for Veterans Claims
(Court) has held that additional evidence, which consists
merely of records of post-service treatment that do not
indicate that a condition is service connected, is not new
and material. Cox v. Brown, 5 Vet. App. 95, 99 (1993);
Morton v. Principi, 3 Vet. App. 508 (1992) (observing that
evidence of the veteran's current condition is not generally
relevant to the issue of service connection, absent some
competent linkage to military service).
Further, years of private treatment records bear entirely on
the Veteran's post-service workplace back injuries and its
treatment; therefore, these records are also new but not
material. The December 1989 psychiatric evaluation prepared
for the Veteran's administrative discharge from service and
not of record in April 1997 contains no reference to any
mental disability, or to any in-patient or out-patient mental
health treatment; this evaluation contained only the
assessment of the Veteran's personality disorder, for which
he was discharged. Therefore, these records as well are new
but not material. Finally, any copies from his service
treatment records are redundant, as these records were before
the RO when it reached its April 1997 decision.
Therefore, none of the evidence submitted since the time of
the last final April 1997 rating decision constitutes new and
material evidence under 38 C.F.R. § 3.156(a) sufficient to
reopen the Veteran's previously-denied claim. The Veteran's
appeal as to the reopening of the finally denied claim of
entitlement to service connection for an acquired psychiatric
disability including major depression is therefore denied.
Legal Criteria - Service Connection
Service connection will be granted for disability resulting
from a disease or injury incurred in or aggravated by
military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.
For the showing of chronic disease in service, there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"Chronic." When the disease entity is established, there
is no requirement of evidentiary showing of continuity.
Continuity of symptomatology is required only where the
condition noted during service is not, in fact, shown to be
chronic or where the diagnosis of chronicity may be
legitimately questioned. When the fact of chronicity in
service is not adequately supported, then a showing of
continuity after discharge is required to support the claim.
38 C.F.R. § 3.303(b).
Service connection may also be granted for a disease first
diagnosed after discharge when all of the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
Specific to service connection claims for PTSD, three
elements must be present in order for an award to be
justified: (1) a current medical diagnosis of PTSD in
accordance with 38 C.F.R. § 4.125(a); (2) medical evidence of
a causal nexus between current symptomatology and a claimed
in-service stressor; and (3) credible supporting evidence
that the claimed in-service stressor(s) actually occurred.
38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128
(1997).
The above cited regulation, 38 C.F.R. § 4.125(a), refers to
the American Psychiatric Association's Diagnostic and
Statistical Manual for Mental Disorders, 4th ed. (1994) (DMS-
IV) as the source of criteria for the diagnosis of claimed
psychiatric disorders. DSM-IV provides that a valid diagnosis
of PTSD requires that a person has been exposed to a
traumatic event in which both of the following were present:
(1) the person experienced, witnessed, or was confronted with
an event or events that involved actual or threatened death
or serious injury, or a threat to the physical integrity of
himself or others, and (2) the person's response involved
intense fear, helplessness, or horror.
Regarding the existence of an in-service stressor, in Zarycki
v. Brown, 6 Vet. App. 91 (1993), the United States Court of
Appeals for Veterans Claims (Court) set forth the analytical
framework and line of reasoning for determining whether a
veteran was exposed to a recognizable stressor during
service, which, as discussed above, is an essential element
in solidifying a claim for service connection for PTSD. In
Zarycki, it was noted that, under 38 U.S.C.A. 1154(b), 38
C.F.R. 3.304(d) and (f), and the applicable provisions
contained in VA Manual 21-1, the evidence necessary to
establish the incurrence of a recognizable stressor during
service to support a claim of service connection for PTSD
will vary depending on whether the veteran "engaged in combat
with the enemy." See Hayes v. Brown, 5 Vet. App. 60 (1993).
The determination as to whether the veteran "engaged in
combat with the enemy" is made, in part, by considering
military citations that expressly denote as much. Doran v.
Brown, 6 Vet. App. 283, 289 (1994). However, the Court has
recently held that the Board may not rely strictly on combat
citations or the veteran's military occupational specialty to
determine if he engaged in combat; rather, other supportive
evidence of combat experience may also be accepted. See
Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996); West v.
Brown, 7 Vet. App. 70, 76 (1994).
If combat is affirmatively indicated, then the veteran's lay
testimony regarding claimed combat-related stressors must be
accepted as conclusive as to their actual occurrence and no
further development or corroborative evidence will be
required, provided that the veteran's testimony is found to
be "satisfactory," i.e., credible, and "consistent with the
circumstances, conditions, or hardships of such service."
Zarycki, 6 Vet. App. at 98.
If there is no combat experience, or if there is a
determination that the veteran engaged in combat, but the
claimed stressor is not related to such combat, there must be
independent evidence to corroborate the veteran's statement
as to the occurrence of the claimed stressor. Doran, 6 Vet.
App. at 288-89. The veteran's testimony, by itself, cannot,
as a matter of law, establish the occurrence of a non-combat
stressor. Dizoglio, 9 Vet. App. at 166. Further, an opinion
by a mental health professional based on a post-service
examination of the veteran cannot be used to establish the
occurrence of a stressor. Moreau v. Brown, 9 Vet. App. 389,
395-96 (1996); Cohen v. Brown, 10 Vet. App. 128 (1997).
Discussion
In this case, the evidence of record does not support the
conclusion that the Veteran engaged in combat with the enemy.
His military occupational specialty, light wheel vehicle
mechanic, is not, in itself, indicative of combat. Moreover,
his DD-214 does not reveal any awards or decorations
indicative of combat. An April 2005 private psychiatric
evaluation report indicated that he had duty in a combat zone
for 6 months, but such statement does not itself demonstrate
that he engaged in combat with the enemy. Accordingly, the
Veteran is not found to have had combat for purposes of
38 U.S.C.A. § 1154(b).
As noted previously, where the record, as here, fails to
establish that the Veteran engaged in combat with the enemy,
his lay statements as to in-service stressors cannot be
accepted without further corroboration through independent
evidence. Doran, 6 Vet. App. at 288-89.
The Veteran here submitted statements in which he identified
his stressors. See Statements February 2006, October 2005.
He described an in-service duty of recovering vehicles, which
is deemed consistent with his DD 214 listed MOS of a light
vehicle mechanic. While stationed in Germany, he was sent to
recover a particular jeep and while doing so, he saw the
bodies of two dead soldiers under the vehicle. He was
reportedly told by another soldier that if he had arrived
sooner, they may have lived. The other stressor occurred in
Texas, while off-post with his soldier roommate. The Veteran
alleged he witnessed the roommate get into a fight with
others which resulted in the victims being slashed with a
knife and requiring 500 stitches. The Veteran remembered
returning to the post after his discharge to testify in the
roommate's court-martial. The February 2006 statement
included a name of the roommate.
The RO determined in a June 2006 Formal Finding that it could
not confirm either stressor claimed by the Veteran. Indeed,
the file contains a detailed worksheet indicating that a
thorough research effort had been undertaken, to include
internet searches of the units involved. Additionally, a
court martial record relating to the knife fight incident
could not be located, even with the approximate date, and
with the name and location of the individual involved. Since
that determination, the Veteran has not submitted additional
information to enable additional research to be performed.
Based on the above, appropriate stressor development was
undertaken but ultimately there was no means of verifying the
claimed events based on the limited information provided by
the Veteran. Accordingly, no claimed stressor has been
verified here, and as a consequence, the claim must fail. In
so finding, the Board acknowledges a diagnosis of PTSD in an
April 2005 private psychiatric evaluation, in which the
evaluator surmised that the Veteran "has likely"
experienced a traumatic event in the past that continued to
distress him. However, that report cannot enable a grant of
service connection in the absence of an established stressor
or established combat service, both of which are lacking
here. Furthermore, for the same reason, the Veteran's own
assertions that he has current PTSD attributable to in-
service events cannot allow for a grant here, and in any
event the question of etiology here involves complex issues
that the Veteran, as a layperson, is not competent to
address. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.
Cir 2007)
In conclusion, the record does not verify any claimed in-
service stressor, and the claim of entitlement to service
connection for PTSD must be denied. As the preponderance of
the evidence is against the claim, the benefit of the doubt
rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert
v. Derwinski, 1 Vet. App. 49, 54-56 (1990).
Duty to Notify and Duty to Assist
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and
3.326(a). Upon receipt of a complete or substantially
complete application for benefits, VA is required to notify
the claimant and his representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002).
The Board concludes that the Veteran has been afforded
appropriate notice under the VCAA. The RO provided a VCAA
notice letter to the Veteran in August 2005, before the
initial original adjudication of the claim. The letter
notified the Veteran of what information and evidence must be
submitted to substantiate claims for service connection, as
well as what information and evidence must be provided by the
Veteran and what information and evidence would be obtained
by VA. He was also asked to inform VA of any additional
information or evidence that VA should have, and was asked to
submit evidence in support of his claim to the RO. The
content of the letter complied with the requirements of
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).
The requirements of the VCAA also include notice of a
disability rating and an effective date for award of benefits
if service connection is granted. Dingess v. Nicholson, 19
Vet. App. 473 (2006). A March 2006 notice letter provided
the Veteran with notice of the laws regarding degrees of
disability or effective dates for any grant of service
connection. Prickett v. Nicholson, 20 Vet. App. 370, 376
(2006). In any event, because the service connection claim
for an acquired psychiatric disability, claimed as major
depression and a mental condition, remains unopened and the
service connection claim for PTSD remains denied, any
questions regarding a disability rating and effective date
are now moot.
In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court
clarified VA's duty to notify in the context of claims to
reopen. With respect to such claims, VA must both notify a
claimant of the evidence and information that is necessary to
reopen the claim and notify the claimant of the evidence and
information that is necessary to establish entitlement to the
underlying claim for the benefit that is being sought. To
satisfy this requirement, the Secretary is required to look
at the bases for the denial in the prior decision and to
provide the claimant with a notice letter that describes what
evidence would be necessary to substantiate those elements
required to establish service connection that were found
insufficient in the previous denial. In this case, the
August 2005 notice letter of record satisfies the
requirements under Kent.
The Board finds that all relevant evidence has been obtained
with regard to the Veteran's claim for service connection,
and the duty to assist requirements have been satisfied. All
available service treatment records were obtained. There is
no identified relevant evidence that has not been accounted
for. The Board notes that a July 2005 statement from the
Veteran's representative listed VA medical facilities where
the Veteran had been treated for the list of conditions he
gave in the July 2005 claim. That list did include the VAMC
in Anchorage, Alaska. The Board could not find an indication
in the record as to whether the Veteran had any mental health
related treatment at this facility; therefore the Board will
not order a remand to retrieve any possible records for his
PTSD claim or the acquired psychiatric disability claim. As
well, a September 1995 VA mental health treatment entry noted
the Veteran's only assertion that he received inpatient
mental health care at "Darnell" while in service. The
Board takes notice that this is the name of the service
hospital on the post of the Veteran's last post of
assignment. The Veteran's service treatment records contain
no mention of the Veteran receiving in-patient mental health
treatment at Darnell Army Hospital, only an overnight stay
under neurology after episodes of fainting, and the Board
finds the Veteran's observation in the private April 2005
evaluation, that he only met with a psychiatrist or
psychologist once in service to be evaluated, to be supported
by the record. Therefore, the Board will not seek a remand
to search for any such in-patient records from Darnell.
Further the RO did request the treatment records from the VA
Central Texas (Waco) and from VAMC Temple (in December 1995)
as identified by the Veteran. The Veteran supplied the
treatment records from Madigan Army Hospital, Fort Lewis,
Washington.
No useful purpose would be served in remanding this matter
for yet more development. Such a remand would result in
unnecessarily imposing additional burdens on VA, with no
additional benefit flowing to the Veteran. The Court has
held that such remands are to be avoided. Sabonis v. Brown,
6 Vet. App. 426, 430 (1994).
The Veteran was not afforded a VA examination to determine
the nature and etiology of the major depression, also claimed
as a mental condition, disability. The Board finds that VA
was not under an obligation to obtain a medical opinion. The
appellant has not submitted new and material evidence to
reopen that claim. 38 C.F.R. § 3.159(c)(4)(iii) states that
paragraph (c)(4) applies to a claim to reopen a finally
adjudicated claim only if new and material evidence is
presented or secured.
The Veteran was not afforded an examination for his PTSD
claim. Pursuant to VA's duty to assist, VA will provide a
medical examination or obtain a medical opinion based upon a
review of the evidence of record if VA determines it is
necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i).
A medical examination or medical opinion may be deemed
necessary where the record contains competent medical
evidence of a current diagnosed disability, establishes that
the Veteran suffered an event, injury or disease in service,
and indicates that the claimed disability may be associated
with the established event, injury or disease in service. Id.
The record before VA need only (1) contain competent evidence
that the Veteran has persistent or recurrent symptoms of
current disability and (2) indicate that those symptoms may
be associated with the Veteran's active military service.
Duenas v. Principi, 18 Vet. App. 512 (2004).
In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court
noted that the third prong of 38 C.F.R. § 3.159(c)(4)(I),
requires that the evidence of record "indicate" that the
claimed disability or symptoms may be associated with
service, establishes a low threshold. See also Locklear v.
Nicholson, 20 Vet. App. 410, at 418 (2006).
The Board has carefully considered the Court's language in
Mclendon that the threshold for showing this association is a
low one. However, there is a threshold . In this case there
is no evidence of continuity of symptomatology, nor have any
in-service stressors or combat service been verified. For
these reasons, the Board declines to afford the Veteran a VA
examination or obtain a medical opinion in this case.
Under the circumstances, the Board finds that there is no
reasonable possibility that further assistance would aid the
Veteran in substantiating the claim. Hence, no further
notice or assistance to the Veteran is required to fulfill
VA's duty to assist him in the development of the claim.
Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v.
Principi, 15 Vet. App. 143 (2001).
(CONTINUED ON NEXT PAGE)
ORDER
New and material evidence not having been received, the
application to reopen a claim of entitlement to service
connection for an acquired psychiatric disability to include
major depression (and excluding PTSD) is denied.
Entitlement to service connection for PTSD is denied.
____________________________________________
ERIC S. LEBOFF
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs